Earlier today, the Supreme Court struck down the two Acts that created an independent body for the appointment of judges to the higher judiciary. One of the Acts amended the Constitution to replace the method of appointment of judges by a collegium system with that of an independent commission, called the National Judicial Appointments Commission (NJAC). The composition of the NJAC would include: (i) the Chief Justice of India (Chairperson) (ii) two other senior most judges of the Supreme Court, (iii) the Union Law Minister, and (iv) two eminent persons to be nominated by the Prime Minister, the CJI and the Leader of Opposition of the Lok Sabha. The other Act laid down the processes in relation to such appointments. Both Acts were passed by Parliament in August 2014, and received Presidential assent in December 2014. Following this, a batch of petitions that had been filed in Supreme Court challenging the two Bills on grounds of unconstitutionality, was referred to a five judge bench. It was contended that the presence of executive members in the NJAC violated the independence of the judiciary. In its judgement today, the Court held that the executive involvement in appointment of judges impinges upon the independence of the judiciary. This violates the principle of separation of powers between the executive and judiciary, which is a basic feature of the Constitution. In this context, we examine the proposals around the appointment of judges to the higher judiciary. Appointment of judges before the introduction of the NJAC The method of appointment of the Chief Justice of India, SC and HC judges was laid down in the Constitution.[i] The Constitution stated that the President shall make these appointments after consulting with the Chief Justice of India and other SC and HC judges as he considers necessary. Between the years 1982-1999, the issue of method of appointment of judges was examined and reinterpreted by the Supreme Court. Since then, a collegium, consisting of the Chief Justice of India and 4 other senior most SC judges, made recommendations for persons to be appointed as SC and HC judges, to the President.[ii] Recommendations of various bodies for setting up an independent appointments commission Over the decades, several high level Commissions have examined this method of appointment of judges to the higher judiciary. They have suggested that an independent body be set up to make recommendations for such appointments. However, they differed in the representation of the judiciary, legislature and executive in making such appointments. These are summarised below. Table 1: Comparison of various recommendations on the composition of a proposed appointments body
| Recommendatory Body | Suggested composition |
| 2nd Administrative Reforms Commission (2007) | Judiciary : CJI; [For HC judges: Chief Justice of the relevant High Court of that state] Executive : Vice-President (Chairperson), PM, Law Minister, [For HC judges: Includes CM of the state] Legislature: Speaker of Lok Sabha, Leaders of Opposition from both Houses of Parliament. Other: No representative. |
| National Advisory Council (2005) | Judiciary: CJI; [For HC judges: Chief Justice of the relevant High Court of that state] Executive: Vice-President (Chairman), PM (or nominee), Law Minister, [For HC judges: Includes CM of the state] Legislature: Speaker of Lok Sabha, Leader of Opposition from both Houses of Parliament. Other: No representative. |
| NCRWC (2002) | Judiciary :CJI (Chairman), two senior most SC judges Executive: Union Law Minister Legislature: No representative Other: one eminent person |
| Law Commission (1987) | Judiciary : CJI (Chairman), three senior most SC judges, immediate predecessor of the CJI, three senior most CJs of HCs, [For HC judges: Chief Justice of the relevant High Court of that state] Executive: Law Minister, Attorney General of India, [For HC judges: Includes CM of the state] Legislature: No representative Other: One Law academic |
Sources: 121st Report of the Law Commission, 1987; Report of the National Commission to Review the Working of the Constitution (NCRWC), 2002; A Consultation Paper on Superior Judiciary, NCRWC, 2001; A National Judicial Commission-Report for discussion in the National Advisory Council, 2005; Fourth Report of the 2nd Administrative Reforms Commission (ARC), ‘Ethics in Governance’, 2007; PRS. It may be noted that the Law Commission, in its 2008 and 2009 reports, suggested that Government should seek a reconsideration of the judgments in the Three Judges cases. In the alternative, Parliament should pass a law restoring the primacy of the CJI, while ensuring that the executive played a role in making judicial appointments. Appointments process in different countries Internationally, there are varied methods for making appointments of judges to the higher judiciary. The method of appointment of judges to the highest court, in some jurisdictions, is outlined in Table 2. Table 2: Appointment of judges to the highest court in different jurisdictions
| Country | Method of Appointment to the highest court | Who is involved in making the appointments |
| UK | SC judges are appointed by a five-person selection commission. | It consists of the SC President, his deputy, and one member each appointed by the JACs of England, Scotland and Northern Ireland.[iii] (The JACs comprise lay persons, members of the judiciary and the Bar and make appointments of judges of lower courts.) |
| Canada | Appointments are made by the Governor in Council.[iv] | A selection panel comprising five MPs (from the government and the opposition) reviews list of nominees and submits 3 names to the Prime Minister.[v] |
| USA | Appointments are made by the President. | Supreme Court Justices are nominated by the President and confirmed by the United States Senate.[vi] |
| Germany | Appointments are made by election. | Half the members of the Federal Constitutional Court are elected by the executive and half by the legislature.[vii] |
| France | Appointments are made by the President. | President receives proposals for appointments from Conseil Superieur de la Magistrature.[viii] |
Sources: Constitutional Reform Act, 2005; Canada Supreme Court Act, 1985; Constitution of the United States of America; Basic Law for the Federal Republic of Germany; Constitution of France; PRS. In delivering its judgment that strikes down the setting up of an NJAC, the Court has stated that it would schedule hearings from November 3, 2015 regarding ways in which the collegium system can be strengthened.
[i] Article 124, Constitution of India (Prior to 2015 Amendments)
[ii] S.P. Gupta vs. Union of India, AIR 1982, SC 149; S.C. Advocates on Record Association vs. Union of India, AIR 1994 SC 268; In re: Special Reference, AIR 1999 SC 1.
[iii]. Schedule 8, Constitutional Reform Act, 2005.
[iv]. Section 4(2), Supreme Court Act (RSC, 1985).
[v]. Statement by the Prime Minister of Canada on the retirement of Justice Morris Fish, http://www.pm.gc.ca/eng/news/2013/04/23/statement-prime-minister-canada-retirement-justice-morris-fish.
[vi]. Article II, Section 2, The Constitution of the United States of America.
[vii]. Article 94 (1), Basic Law for the Federal Republic of Germany.
[viii] Article 65, Constitution of France, http://www.conseil-constitutionnel.fr/conseil-constitutionnel/root/bank_mm/anglais/constiution_anglais_oct2009.pdf.
On October 2, 2021, Swachh Bharat Mission (SBM) celebrates its seventh anniversary. It was launched on October 2, 2014 to fulfil the vision of a cleaner India by October 2, 2019. The objective of the Mission was to eliminate open defecation, eradicate manual scavenging, and promote scientific solid waste management. In this blog post, we discuss the sanitation coverage leading up to the launch of the Swachh Bharat Mission and the progress made under this scheme.
Nation-wide sanitation programmes in past
According to the Census, the rural sanitation coverage in India was only 1% in 1981.
The first nationwide programme with a focus on sanitation was the Central Rural Sanitation Programme (CRSP), which was started in 1986 to provide sanitation facilities in rural areas. Later, in 1999, CRSP was restructured and launched as the Total Sanitation Campaign (TSC). While CRSP was a supply-driven infrastructure-oriented programme based on subsidy, TSC was a demand-driven, community-led, project-based programme organised around the district as the unit.
By 2001, only 22% of the rural families had access to toilets. It increased further to 32.7% by 2011. In 2012, TSC was revamped as Nirmal Bharat Abhiyan (NBA) to accelerate the sanitation coverage in rural areas through saturation approach and by enhancing incentives for Individual Household Latrines (IHHL).
In comparison to rural sanitation, fewer programmes were enacted to tackle deficiencies in urban sanitation. In the 1980s, the Integrated Low-Cost Sanitation Scheme provided subsidies for households to build low-cost toilets. Additionally, the National Slum Development Project and its replacement programme, the Valmiki Ambedkar Awas Yojana launched in 2001, were programmes that aimed to construct community toilets for slum populations. In 2008, the National Urban Sanitation Policy (NUSP) was announced to manage human excreta and associated public health and environmental impacts.
On October 2, 2014, the Swachh Bharat Mission was launched with two components: Swachh Bharat Mission (Gramin) and Swachh Bharat Mission (Urban), to focus on rural and urban sanitation, respectively. While the rural component of the Mission is implemented under the Department of Drinking Water and Sanitation, the urban one is implemented by the Ministry of Housing and Urban Affairs. In 2015, the Sub-Group of Chief Ministers on Swachh Bharat Abhiyaan under NITI Aayog had observed that the key difference between SBM and previous programmes was in the efforts to attract more partners to supplement public sector investment towards sanitation.
Swachh Bharat Mission – Gramin (SBM-Gramin)
The Sub-Group of Chief Ministers (2015) had noted that more than half of India’s 25 crore households do not have access to toilets close to places where they live. Notably, during the 2015-19 period, a major portion of expenditure under the Department of Drinking Water and Sanitation was towards SBM-Gramin (see Figure 1).
Figure 1: Expenditure on Swachh Bharat Mission-Gramin during 2014-22
Note: Values for 2020-21 are revised estimates and 2021-22 are budget estimates. Expenditure before 2019-20 were from the erstwhile Ministry of Drinking Water and Sanitation.
Sources: Union Budgets 2014-15 to 2021-22; PRS.
The expenditure towards Swachh Bharat – Gramin saw a steady increase from 2014-15 (Rs 2,841 crore) to 2017-18 (Rs 16,888 crore) and a decrease in the subsequent years. Moreover, during 2015-18, the expenditure of the scheme exceeded the budgeted amount by more than 10%. However, every year since 2018-19, there has been some under-utilisation of the allocated amount.
As per the Department of Drinking Water and Sanitation, 43.8% of the rural households had access to toilets in 2014-15, which increased to 100% in 2019-20 (see Figure 2). However, the 15th Finance Commission (2020) noted that the practice of open defecation is still prevalent, despite access to toilets and highlighted that there is a need to sustain the behavioural change of people for using toilets. The Standing Committee on Rural Development raised a similar concern in 2018, noting that “even a village with 100% household toilets cannot be declared open defecation-free (ODF) till all the inhabitants start using them”. The Standing Committee also raised questions over the construction quality of toilets and observed that the government is counting non-functional toilets, leading to inflated data.
Figure 2: Toilet coverage for rural households
Sources: Dashboard of SBM (Gramin), Ministry of Jal Shakti; PRS.
The 15th Finance Commission also noted that the scheme only provides financial incentives to construct latrines to households below the poverty line (BPL) and selected households above the poverty line. It highlighted that there are considerable exclusion errors in finding BPL households and recommended the universalisation of the scheme to achieve 100% ODF status.
In March 2020, the Department of Drinking Water and Sanitation launched Phase II of SBM-Gramin which will focus on ODF Plus, and will be implemented from 2020-21 to 2024-25 with an outlay of Rs 1.41 lakh crore. ODF Plus includes sustaining the ODF status, and solid and liquid waste management. Specifically, it will ensure that effective solid and liquid waste management is instituted in every Gram Panchayat of the country.
Swachh Bharat Mission – Urban (SBM-Urban)
SBM-Urban aims at making urban India free from open defecation and achieving 100% scientific management of municipal solid waste in 4,000+ towns in the country. One of its targets was the construction of 66 lakh individual household toilets (IHHLs) by October 2, 2019. However, this target was then lowered to 59 lakh IHHLS by 2019. This target was achieved by 2020 (see Table 1).
Table 1: Toilet construction under Swachh Bharat Mission-Urban (as of December 30, 2020)
|
Targets |
Original Target |
Revised Target |
Actual Constructed |
|
Individual Household Latrines |
66,42,000 |
58,99,637 |
62,60,606 |
|
Community and Public Toilets |
5,08,000 |
5,07,587 |
6,15,864 |
Sources: Swachh Bharat Mission Urban - Dashboard; PRS.
Figure 3: Expenditure on Swachh Bharat Mission-Urban during 2014-22 (in Rs crore)
Note: Values for 2020-21 are revised estimates and 2021-22 are budget estimates.
Sources: Union Budget 2014-15 to 2021-22; PRS.
The Standing Committee on Urban Development noted in early 2020 that toilets built under the scheme in areas including East Delhi are of very poor quality, and do not have adequate maintenance. Further, only 1,276 of the 4,320 cities declared to be open defecation free have toilets with water, maintenance, and hygiene. Additionally, it also highlighted in September 2020 that uneven release of funds for solid waste management across states/UTs needs to be corrected to ensure fair implementation of the programme.
The Standing Committee on Urban Development (2021) also expressed concern about the slow pace in achieving targets for source segregation and waste processing. The completion of their targets stood at 78% and 68% respectively of the goal set under SBM-Urban during 2020-21. In addition, other targets related to the door-to-door collection of waste also remained unfulfilled (see Table 2).
Table 2: Waste management under Swachh Bharat Mission-Urban (progress as of December 30, 2020)
|
Targets |
Target |
Progress |
Progress |
|
Door to Door Waste Collection (Wards) |
86,284 |
81,535 (96%) |
83,435 (97%) |
|
Source Segregation (Wards) |
86,284 |
64,730 (75%) |
67,367 (78%) |
|
Waste Processing (in %) |
100% |
65% |
68% |
Sources: Standing Committee on Urban Development (2021); PRS.
In February 2021, the Finance Minister announced in her budget speech that the Urban Swachh Bharat Mission 2.0 will be launched. Urban Swachh Bharat Mission 2.0 will focus on: (i) sludge management, (ii) waste-water treatment, (iii) source segregation of garbage, (iv) reduction in single-use plastics and (v) control of air pollution caused by construction, demolition, and bio-remediation of dumpsites. On October 1, 2021, the Prime Minister launched SBM-Urban 2.0 with the mission to make all our cities ‘Garbage Free’.
